Case 2:22-cv-01305-FB-ST Document 1 Filed 03/09/22 Page 1 of 12 PageID #: 1
`
`
`
`
`
`
`
`
`
`
`Case No. 2:22-cv-1305
`
`
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
`
`
`x::::::::::::::::::x
`
`Plaintiffs,
`
`-vs-
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`---------------------------------------------------------
`
`PAMELA MAHONEY;
`MICHAEL MAHONEY;
`LISA SOLOMON; and
`MITCH SOLOMON,
`
`
`
`
`
`U.S. DEPARTMENT OF THE
`INTERIOR; BUREAU OF OCEAN
`ENERGY MANAGEMENT; U.S.
`DEPARTMENT OF THE ARMY; and
`U.S. ARMY CORPS OF ENGINEERS,
`
`
`
`---------------------------------------------------------
`
`
`
`Defendants.
`
`Plaintiffs allege as follows:
`
`INTRODUCTION
`
`1.
`
`Plaintiffs are long-time residents of East Hampton, New York who seek to enjoy
`
`their homes without jeopardizing the health of themselves and their families. They support the re-
`
`newable energy that will be generated by the South Fork Wind Farm project (“South Fork project”)
`
`off the eastern shore of Long Island. But as now configured, the onshore portion of that project
`
`— which will connect the generated electricity to the local power grid through a high-voltage cable
`
`— will cause serious environmental problems. In particular, the trenching required to install the
`
`cable under the roads of East Hampton will disturb and spread known contamination of the ground-
`
`water by so-called per- and polyfluoroalkyl substances (“PFAS”), which are health-endangering
`
`compounds in the eyes of federal and state authorities. That contamination will likely threaten
`
`public and private water wells, including those owned by Plaintiffs.
`
`{00315354.DOCX}
`
`1
`
`

`

`Case 2:22-cv-01305-FB-ST Document 1 Filed 03/09/22 Page 2 of 12 PageID #: 2
`
`
`
`2.
`
`Defendants are federal agencies that were required by law to give thoughtful and
`
`serious consideration to known environmental concerns before granting their approvals and permits
`
`for the South Fork project. Yet as described below, Defendants abdicated their legal responsibility
`
`by failing to evaluate the risk of PFAS contamination in anything but the most perfunctory manner.
`
`In so failing, Defendants took final agency action that was arbitrary, capricious, and contrary to law.
`
`This Court has the authority and duty to set aside the unlawful approvals in relevant part. Moreover,
`
`because Plaintiffs will suffer irreparable harm during the pendency of this case, the Court may and
`
`should order an immediate halt to further PFAS-spreading construction activities in East Hampton.
`
`JURISDICTION AND VENUE
`
`3.
`
`This Court has original subject matter jurisdiction under 28 U.S.C. § 1331 because
`
`this is a civil action and Plaintiffs’ claims arise under federal law, namely, the Administrative Pro-
`
`cedure Act (“APA”), 5 U.S.C. § 702; the National Environmental Policy Act (“NEPA”), 42 U.S.C.
`
`§ 4332(2)(C); the Clean Water Act, 33 U.S.C. § 1344(b)(1); and the Outer Continental Shelf Lands
`
`Act (“OCSLA”), 43 U.S.C. § 1337(p)(4)(B).
`
`4.
`
`This Court has authority to grant the relief requested herein pursuant to the APA, 5
`
`U.S.C. § 706(2); and the Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202.
`
`5.
`
`Venue is proper in this Court under 28 U.S.C. § 1391(e)(1)(B) because this is a civil
`
`action in which a defendant is an agency of the United States, and (i) a substantial part of the events
`
`or omissions giving rise to the claim occurred in this judicial district, or (ii) a substantial part of
`
`property that is the subject of the action is situated in this judicial district.
`
`PARTIES
`
`6.
`
`Plaintiffs Pamela and Michael Mahoney, wife and husband, are residents of Wain-
`
`scott, Town of East Hampton, Suffolk County, New York.
`
`{00315354.DOCX}
`
`2
`
`

`

`Case 2:22-cv-01305-FB-ST Document 1 Filed 03/09/22 Page 3 of 12 PageID #: 3
`
`
`
`7.
`
`Plaintiffs Lisa and Mitch Solomon, wife and husband, are residents of Wainscott,
`
`Town of East Hampton, Suffolk County, New York.
`
`8.
`
`Defendant U.S. Department of the Interior (“Interior”) is an “agency” within the
`
`meaning of the APA, 5 U.S.C. § 701(b)(1). Through its Secretary, Interior has the authority and
`
`duty to comply with NEPA, 42 U.S.C. § 4332(2)(C), and with OCSLA, 43 U.S.C. § 1337(p)(4)(B).
`
`9.
`
`Defendant Bureau of Ocean Energy Management (“BOEM”) is a component of
`
`Interior and an “agency” within the meaning of the APA, 5 U.S.C. § 701(b)(1). Exercising auth-
`
`ority delegated from Interior, BOEM took two of the final agency actions challenged herein.
`
`10.
`
`Defendant U.S. Department of the Army (“Army”) is an “agency” within the mean-
`
`ing of the APA, 5 U.S.C. § 701(b)(1). Through its Secretary, the Army has the authority and duty
`
`to comply with NEPA and the Clean Water Act, 33 U.S.C. § 1344(b)(1).
`
`11.
`
`Defendant U.S. Army Corps of Engineers (“Army Corps”) is a component of the
`
`Army and an “agency” within the meaning of the APA, 5 U.S.C. § 701(b)(1). Exercising authority
`
`delegated from the Army, the Army Corps took one of the final agency actions challenged herein.
`
`GENERAL ALLEGATIONS
`
`Plaintiffs and their homes in the hamlet of Wainscott
`
`Plaintiffs Pamela and Michael Mahoney own real property on Beach Lane in Wain-
`
`A.
`
`12.
`
`scott (“Mahoney Property”).
`
`13. Wainscott is a hamlet within the Town of East Hampton, New York. Pamela and
`
`Michael are both registered to vote in East Hampton.
`
`14.
`
`The Mahoney Property has been owned by Pamela Mahoney’s family since at least
`
`the 1940’s. In 2013, Pamela became the owner of the Mahoney Property.
`
`15.
`
`Pamela grew up in the cottage located on the Mahoney Property. Now, Pamela and
`
`Michael live in the cottage and (since 2020) have lived there most of the time.
`
`{00315354.DOCX}
`
`3
`
`

`

`Case 2:22-cv-01305-FB-ST Document 1 Filed 03/09/22 Page 4 of 12 PageID #: 4
`
`
`
`16.
`
`Pamela’s and Michael’s three young grandchildren enjoy visiting the cottage and
`
`would like to live in it themselves in the future.
`
`17.
`
`Pamela and Michael intend to make the cottage a long-term year-round home. As
`
`such, the Mahoneys have made significant investments in the cottage, including hiring an architect
`
`and a builder to construct a foundation for the cottage.
`
`18.
`
`Up until 2018, the Mahoneys had relied on a private well located on their property
`
`for drinking water. But in that year, the Mahoneys learned that the water in their well was con-
`
`taminated with PFAS. Thus, the Mahoneys no longer rely on the well for drinking water, but they
`
`do use water from the well for other purposes such as irrigation.
`
`19.
`
`PFAS are hazardous substances known to cause a variety of health problems. PFAS
`
`do not readily decompose and accordingly persist in the environment for long periods. PFAS can
`
`also travel long distances through the flow of groundwater.
`
`20.
`
`Plaintiffs Lisa and Mitch Solomon also own real property in Wainscott, located on
`
`Wainscott Northwest Road (“Solomon Property”). They are registered to vote in East Hampton.
`
`21.
`
`Lisa Solomon is the owner of the Solomon Property, which has been the principal
`
`residence for the Solomons for the past six years.
`
`22.
`
`The Solomons also have a well on their property. The Solomons likewise do not
`
`rely on the well for drinking water, but use water from the well for other purposes such as irrigation.
`
`23.
`
`B.
`
`As on the Mahoney Property, PFAS is present on the Solomon Property.
`
`The South Fork Wind Farm project, its onshore cable, and the adverse
`environmental impacts to Plaintiffs and the Wainscott community
`
`24.
`
`The South Fork project involves constructing an offshore windfarm off the eastern
`
`point of Long Island. The project developer is South Fork Wind, LLC (“South Fork”), formerly
`
`known as Deepwater Wind South Fork, LLC.
`
`{00315354.DOCX}
`
`4
`
`

`

`Case 2:22-cv-01305-FB-ST Document 1 Filed 03/09/22 Page 5 of 12 PageID #: 5
`
`
`
`25.
`
`The South Fork project plans to bring electricity onshore through a high-voltage
`
`transmission cable. The cable will make landfall on Beach Lane in Wainscott, beginning under-
`
`ground at the buried sea-to-shore vault near the south end of Beach Lane and extending northwest
`
`along Beach Lane (adjacent to the Mahoney Property). On its way to a so-called “interconnection
`
`facility” that will connect the cable to the local electrical power grid, the cable will follow Wainscott
`
`Northwest Road (adjacent to the Solomon Property).
`
`26.
`
`Burying the cable and placing the six vaults on Beach Lane and other roads in East
`
`Hampton will require excavation. This excavation will extend to eleven feet below ground.
`
`27.
`
`The cable and the trench in which it is placed will intersect with groundwater that
`
`is contaminated with PFAS. Moreover, the cable trench will become a preferential pathway for
`
`the movement of PFAS and, as such, will transport PFAS contaminants to locations that otherwise
`
`would not be impacted.
`
`28.
`
`As a preferential pathway for PFAS, this cable trench will harm Plaintiffs because
`
`it will facilitate the movement of higher concentrations of PFAS onto the Mahoney Property and
`
`the Solomon Property. This movement of PFAS will more likely than not contaminate or further
`
`contaminate the water supply in the wells located on the Mahoney Property, the Solomon Property,
`
`and other property in the area.
`
`29.
`
`30.
`
`This contamination will jeopardize private and public drinking wells in the area.
`
`The South Fork cable will also pass through or near other known PFAS plumes in
`
`East Hampton and, as such, will potentially be in contact with groundwater.
`
`31.
`
`All of the risks to groundwater, private wells, and public wells in the vicinity of the
`
`cable corridor will not be fully known until additional groundwater monitoring wells are installed
`
`within the corridor and additional studies are conducted.
`
`{00315354.DOCX}
`
`5
`
`

`

`Case 2:22-cv-01305-FB-ST Document 1 Filed 03/09/22 Page 6 of 12 PageID #: 6
`
`
`
`32.
`
`The onshore cable component of the South Fork project raises significant environ-
`
`mental impacts for Plaintiffs and the Wainscott community at-large, especially in light of the likely
`
`adverse impacts on groundwater.
`
`C.
`
`33.
`
`Defendants’ EIS failed to take a hard look at PFAS contamination.
`
`To complete the South Fork project, the developer needed approvals and permits
`
`from numerous agencies, including from Defendants here:
`
`(a)
`
`BOEM’s Record of Decision (“BOEM’s ROD”), which issued on November 24,
`
`2021;
`
`(b)
`
`BOEM’s approval of South Fork’s Construction and Operations Plan (“BOEM’s
`
`COP approval”), which issued on January 18, 2022; and
`
`(c)
`
`a dredging permit from the Army Corps (“Army Corps’ Permit”), which issued on
`
`January 18, 2022.
`
`34.
`
`To determine whether and under what conditions to grant the approvals and permits,
`
`Defendants were required to craft an environmental impact statement (“EIS”) in accordance with
`
`NEPA and its implementing regulations. Accordingly, BOEM (with the Army Corps’ cooperation)
`
`issued a “Final EIS” on August 16, 2021.
`
`35.
`
`In the process leading to the Final EIS, BOEM and the Army Corps received several
`
`comments (one attaching a detailed report) alerting them to the serious issue of PFAS contamination
`
`in East Hampton. Yet despite these comments, the Final EIS does not take a hard look at the issue
`
`or otherwise engage in any full and fair discussion of the issue.
`
`36.
`
`In particular, the Final EIS acknowledges the existence of PFAS in East Hampton
`
`but offers no assessment of whether the South Fork project exacerbates the risk of East Hampton’s
`
`drinking water supply becoming contaminated or further contaminated with PFAS.
`
`{00315354.DOCX}
`
`6
`
`

`

`Case 2:22-cv-01305-FB-ST Document 1 Filed 03/09/22 Page 7 of 12 PageID #: 7
`
`
`
`37.
`
`In granting the approvals and permits listed above, Defendants relied on the per-
`
`functory analysis of potential PFAS contamination in authorizing South Fork to move ahead with
`
`trenching a cable in Plaintiffs’ neighborhoods and elsewhere in East Hampton.
`
`D.
`
`38.
`
`Plaintiffs have Article III standing and satisfy the zone-of-interests test.
`
`Plaintiffs are suffering injury in fact because they not only use the relevant environ-
`
`ment; they live there. Moreover, their property is less valuable because of the challenged actions.
`
`39.
`
`Plaintiffs’ injuries are fairly traceable to Defendants’ conduct. South Fork would
`
`not be planning to trench a cable from Wainscott Beach through Plaintiffs’ neighborhoods to the
`
`interconnection facility but for Defendants requiring South Fork to use the Beach Lane route for
`
`the onshore cable as a condition of their approvals and permits.
`
`40.
`
`Because South Fork cannot legally trench a cable without a permit from Defendant
`
`Army Corps, an order from this Court vacating the Army Corps’ Permit would redress Plaintiffs’
`
`injuries. Moreover, Defendants have the authority to modify their approvals and permits to pre-
`
`vent South Fork from continuing to trench the cable.
`
`41.
`
`Plaintiffs satisfy the zone-of-interest test for each of the statutes under which they
`
`sue because their injury has an environmental as well as an economic component.
`
`Plaintiffs are challenging final agency action.
`
`Each agency action that Plaintiffs challenge is final.
`
`Defendant BOEM’s ROD and COP approval are self-evidently final decisions, and
`
`E.
`
`42.
`
`43.
`
`they so state.
`
`44.
`
`The Army Corps’ issuance of a permit that is accepted by the applicant, as occurred
`
`here, is always a final decision under 33 C.F.R. § 331.10.
`
`45.
`
`The Final EIS may be challenged under the precept that a “preliminary, procedural,
`
`or intermediate agency action or ruling not directly reviewable is subject to review on the review
`
`{00315354.DOCX}
`
`7
`
`

`

`Case 2:22-cv-01305-FB-ST Document 1 Filed 03/09/22 Page 8 of 12 PageID #: 8
`
`
`
`of the final agency action.” 5 U.S.C. § 704. The Final EIS is “preliminary” to BOEM’s ROD,
`
`BOEM’s COP approval, and the Army Corps’ Permit.
`
`INJUNCTIVE RELIEF ALLEGATIONS
`
`46.
`
`Plaintiffs are suffering injury that is actual or imminent because impending construc-
`
`tion activities will disturb a known PFAS plume and intersect other areas in which the groundwater
`
`is contaminated with PFAS. That disturbance will likely result in higher concentrations of PFAS
`
`on the Mahoney Property and the Solomon Property, not to mention contamination or further con-
`
`tamination of Plaintiffs’ well water supply. As a result, Plaintiffs’ properties will be less valuable.
`
`47.
`
`That environmental injury is irreparable because it is permanent or at least of long
`
`duration, and there is a substantial chance that upon final resolution of the action, Plaintiffs cannot
`
`be returned to the positions that they previously occupied.
`
`48.
`
`Both the balance of the equities and the public interest favor injunctive relief, in that
`
`safeguarding a community’s water supply from contamination by dangerous chemicals and ensur-
`
`ing that Defendants comply with the law serve the interests of both Plaintiffs and the public, and
`
`they outweigh any harm that might result from a preliminary injunction.
`
`FIRST CLAIM FOR RELIEF
`
`(Against all Defendants for violations of NEPA and the APA)
`
`Plaintiffs reallege Paragraphs 1–48 above as if set forth in full herein.
`
`Under NEPA, 42 U.S.C. § 4332(2)(C), and its implementing regulations, an EIS must
`
`49.
`
`50.
`
`provide a full and fair discussion of significant environmental impacts to inform decisionmakers
`
`and the public of the reasonable alternatives that would avoid or minimize adverse impacts or en-
`
`hance the quality of the human environment. In the EIS, it must be evident the agency took a “hard
`
`look” at the environmental consequences of its decision.
`
`{00315354.DOCX}
`
`8
`
`

`

`Case 2:22-cv-01305-FB-ST Document 1 Filed 03/09/22 Page 9 of 12 PageID #: 9
`
`
`
`51.
`
`As described above, Defendants here barely considered the risk of the South Fork
`
`project’s causing or furthering PFAS contamination in the drinking water supply in East Hampton,
`
`let alone took a hard look at this issue. That is, the Final EIS merely acknowledges the existence
`
`of PFAS, but it offers no discussion concerning the potential adverse environmental impacts of new
`
`or intensified PFAS contamination caused by the South Fork project.
`
`52.
`
`In granting approvals and permits in reliance on this deficient Final EIS, Defendants
`
`failed to comply with NEPA and its implementing regulations and therefore engaged in final agency
`
`action that was arbitrary, capricious, and contrary to law.
`
`53.
`
`Under the APA, 5 U.S.C. § 706(2)(A), the Court has the authority and duty to hold
`
`unlawful and set aside such agency action in relevant part.
`
`54.
`
`55.
`
`Plaintiffs are entitled to a judgment so holding and setting aside.
`
`Plaintiffs are further entitled to preliminary and permanent injunctions against any
`
`further work permitted by or otherwise pursuant to such unlawful final agency action.
`
`SECOND CLAIM FOR RELIEF
`
`(Against Defendants Army and Army Corps for violations of the Clean Water Act and APA)
`
`56.
`
`57.
`
`Plaintiffs reallege Paragraphs 1–48 above as if set forth in full herein.
`
`Army Corps regulations implementing Section 404(b)(1) of the Clean Water Act,
`
`33 U.S.C. § 1344(b)(1) provide that “no discharge of dredged or fill material shall be permitted if
`
`there is a practicable alternative to the proposed discharge which would have less adverse impact
`
`on the aquatic ecosystem, so long as the alternative does not have other significant adverse environ-
`
`mental consequences.” 40 C.F.R. § 230.10(a).
`
`58.
`
`Under those so-called Section 404(b)(1) Guidelines, the Army Corps must (among
`
`other requirements) take a “hard look” at the proposal and offer a meaningful conclusion based on
`
`the evidence before the agency.
`
`{00315354.DOCX}
`
`9
`
`

`

`Case 2:22-cv-01305-FB-ST Document 1 Filed 03/09/22 Page 10 of 12 PageID #: 10
`
`
`
`59.
`
`As described above, the Army Corps here barely considered the risk of the South
`
`Fork project’s causing or furthering PFAS contamination in the drinking water supply in East
`
`Hampton, let alone took a hard look at this issue. That is, the Final EIS merely acknowledges the
`
`existence of PFAS, but it offers no discussion concerning the potential adverse environmental im-
`
`pacts of new or intensified PFAS contamination caused by the South Fork project.
`
`60.
`
`In granting a permit based on this deficient Final EIS, the Army and the Army Corps
`
`failed to comply with the Clean Water Act and the Section 404(b)(1) Guidelines and therefore en-
`
`gaged in final agency action that was arbitrary, capricious, and contrary to law.
`
`61.
`
`Under the APA, 5 U.S.C. § 706(2)(A), the Court has the authority and duty to hold
`
`unlawful and set aside such agency action in relevant part.
`
`62.
`
`63.
`
`Plaintiffs are entitled to a judgment so holding and setting aside.
`
`Plaintiffs are further entitled to preliminary and permanent injunctions against any
`
`further work permitted by or otherwise pursuant to such unlawful final agency action.
`
`THIRD CLAIM FOR RELIEF
`
`(Against Defendants Interior and BOEM for violations of OCSLA and the APA)
`
`64.
`
`65.
`
`Plaintiffs reallege Paragraphs 1–48 above as if set forth in full herein.
`
` OSCLA provides that BOEM “shall ensure that any activity under this subsection
`
`[authorizing leases, easements, or rights-of-way for energy and related purposes] is carried out in a
`
`manner that provides for . . . protection of the environment.” 43 U.S.C. § 1337(p)(4)(B).
`
`66.
`
`As described above, BOEM here did not ensure that the South Fork project provid-
`
`ed for the protection of East Hampton’s groundwater from PFAS contamination. That is, the Final
`
`EIS merely acknowledges the existence of PFAS, but it offers no discussion concerning the poten-
`
`tial adverse environmental impacts of new or intensified PFAS contamination caused by the South
`
`Fork project.
`
`{00315354.DOCX}
`
`10
`
`

`

`Case 2:22-cv-01305-FB-ST Document 1 Filed 03/09/22 Page 11 of 12 PageID #: 11
`
`
`
`67.
`
`In granting approvals based on this deficient Final EIS, Interior and BOEM failed
`
`to comply with OCSLA and therefore engaged in final agency action that was arbitrary, capricious,
`
`and contrary to law.
`
`68.
`
`Under the APA, 5 U.S.C. § 706(2)(A), the Court has the authority and duty to hold
`
`unlawful and set aside such agency action in relevant part.
`
`69.
`
`70.
`
`Plaintiffs are entitled to a judgment so holding and setting aside.
`
`Plaintiffs are further entitled to preliminary and permanent injunctions against any
`
`further work permitted by or otherwise pursuant to such unlawful final agency action.
`
`NO PRIOR APPLICATIONS
`
`71.
`
`No prior application for this or any similar relief has been made in this Court.
`
`PRAYER FOR RELIEF
`
`72. Wherefore, Plaintiffs pray for relief as follows:
`
`(a)
`
`a temporary restraining order against any further work on the onshore cable portion
`
`of the South Fork project permitted by or otherwise pursuant to the approvals or permits challenged
`
`herein;
`
`(b)
`
`(c)
`
`(d)
`
`a preliminary injunction against such work;
`
`a permanent injunction against such work;
`
`a declaratory judgment holding unlawful and setting aside in relevant part the final
`
`agency action challenged herein;
`
`(e)
`
`(f)
`
`costs of suit herein; and
`
`such other relief as the Court deems just and proper.
`
`{00315354.DOCX}
`
`11
`
`

`

`Case 2:22-cv-01305-FB-ST Document 1 Filed 03/09/22 Page 12 of 12 PageID #: 12
`
`
`
`Dated: March 9, 2022
`
`
`
`
`
`HICKS THOMAS LLP
`
`
`
`
`/s/ Crystal V. Venning
`Eric Grant (pro hac vice application impending)
`grant@hicks-thomas.com
`John B. Thomas (pro hac vice application impending)
`jthomas@hicks-thomas.com
`Crystal V. Venning (New York Bar No. 5294681)
`cvenning@hicks-thomas.com
`Justin R. Braga (pro hac vice application impending)
`jbraga@hicks-thomas.com
`700 Louisiana Street, Suite 2300
`Houston, Texas 77002
`Telephone: (713) 547-9100
`Facsimile:  (713) 547-9150
`
`Counsel for Plaintiffs
`
`{00315354.DOCX}
`
`12
`
`